People ex rel. Delehanty v. McIntyre

Page; J. (dissenting):

The respondent contends that the complaint fails to state a cause of action for the reason it is not affirmatively alleged that prior to commencing the action the Attorney-General had required the relator to give security to indemnify the People against costs and expenses as required by section 1986 of the Code of Civil Procedure. If this requirement of the Code is to be construed as a condition precedent to the maintenance of the action, under well-settled rules, it would be necessary for the complaint to allege the performance of the condition. But as I read the statute, this is not a condition precedent to the maintenance of the action, but a duty imposed on the Attorney-General before he shall act. It is to be presumed that the Attorney-General has done his duty and it is not necessary for him to allege in the complaint that he has done so. The security is not for the benefit of the respondent but for the protection of the People of the State.

A similar provision was in the Revised Statutes (1 R. S. 180, §§ 10, 11; 1 R. S. [6th ed.] 538, §§ 10, 11, published in 1875) in relation to actions in ejectment brought upon the consent of the Attorney-General. Section 1986 of the Code of Civil Procedure was enacted in 1880. It has never been the practice to allege in the complaint the giving of the security, nor 'have I been able to find in this or any other State having a similar statute a case holding it to be necessary to do so.

In my opinion the order should be affirmed.

Order reversed, with costs, and motion granted, with leave to plaintiff to, amend as stated in opinion. Order to be settled on notice.